Richha Ram vs Balabhadra Das Goswami

Khaja Mohamad Noor, J. - This second appeal arises out of a suit instituted by the respondents for setting aside a mortgage and a sale held there under of some debutter properties. The facts are these :

The defendants 3, 4, 5, 6 and 7 were the shebaits of an idol Sri Radhagobindji installed at mauza Chatra in Kendrapara, district Cuttack. There seems to have been some dispute and quarrel between them which necessitated the appointment of a common manager by the District. Judge. Thereafter these defendants by a document known as seba samarpanpatra dated the 4th April 1924, abdicated their shebaitship p and made it over to the plaintiffs. The plaintiffs claim that they have as shebaits been looking after the idol and the debutter properties attached, thereto. In their capacity as such they instituted this suit against the present A appellant (defendant No.2) and his father (defendant No.1) for setting aside the mortgage of the debutter properties by defendant No.3 in favour of defendants nos. 1 and 2 and the sale which was held in execution of a decree based upon that mortgage. The defence of the defendant inter alia was that the disputed properties were not debutter but personal properties of defendant No.3 who hail full power to mortgage them. They also questioned the right of the plaintiffs to institute the suit. Their plea was that by the document samarpanpatra, of the 4th of April 1924, the plaintiffs acquired no right of shebaitship. They contend that the shebaitship is inalienable unless it can be proved that it is so by custom. The learned Munsif of Kendrapara decreed the plaintiffs suit. He held the properties in suit to be the debutter properties of the idol and that in this particular case the shebaitship has been legally transferred. He based his last finding on the fact that in this case a custom was established allowing the transfer of the shebaitship rights and also held basing his finding on some decisions which I shall presently deal that when the transfer of the shebaitship is for benefit of the idol, it is permissible under the law, the defendants 1 and 2 appealed and their appeal was heard by the learned Subordinate Judge. It seems that the appellants did not press before him the question whether the properties in suit were or were not debutter properties and before us also they have conceded that on the finding of tact by the trial Court that the properties were debutter and were mortgaged for the personal requirements of defendant No.3 they have no case to contest this point. There fore before the learned Subordinate Judge and also before us the whole contest centered round the question whether by the samarpanpatra of the 4th April 1924 the plaintiffs have acquired the right of shebaitship of this idol ill order to entitle them to maintain the present suit. Defendant No.1 is dead and defendant No.2 son of defendant No.1 is the sole appellant before us.

There seems to have been some confusion in the minds of both the Courts below. They have not appreciated the difference been the alienation of the debutter property for the benefit of the idol and the alienation of the shebaitship itself. There is no doubt and it is a settled law that the debutter property can be alienated by the shebait for the benefit of the idol; but the question becomes different when the alienation of the shebaitship itself is concerned, and I shall presently show that the authorities are almost clear and unanimous that in the absence of a custom or some condition in the deed of endowment to the contrary, the shebaitship can not be transferred. It also seems to us to be unreasonable that a she-bait for the time being can at his own sweet will transfer his office to any person whom he likes irrespective of the consideration whether the transferee or the man whom he appoints a she-bait is a fit person to be so and whether he is approved and liked by the who are interested in the idol or in its worship. The leading case on this point which, has been placed before us by the learned. Advocate of the appellants is Raja Vurmah Valia v. Ravi Vurmah Kunhi Kutty ILR 1 Mad. 235. In that case the suit was instituted by the she-bait who was described as Urallers to establish his night to custody, management and appropriation of all the jewels and other properties belonging to a pagoda. The plaintiff was appointed by the previous Urallers. In the defence the right of the plaintiffs was disputed and amongst others it was contended that the last Urallers were not competent to appoint the plaintiff the Urallers of the Pagoda. The Courts in India upheld this contention and dismissed the plaintiff''s suit; The matter went up to the. privy Council and Sir James Colvile in delivering the judgment of their Lordships first of all reviewed some cases on the point and then remarked as follows :

"This being the state of the authorities their Lordships are of opinion that there is no authority binding even on the Court of Madras which is inconsistent with the judgement under appeal, that the general principle affirmed by those judgments correct, and consequently that the Urallers had no power under what may be termed the common law of India to transfer their Uraimas right to the plaintiff." As the custom of allowing such transfers of the shebaitship was not found in that case, the plaintiffs suit was dismissed throughout, No decision has been placed before us which in any way modifies the decision of their Lordships of the Privy Council in the case I have cited above.

The next case is the case of Rajeswar Mullick v. Gopeswar Mullick, 7 CLJ 315 There the question ''I was whether appointment by a shebait of his successor by a will was valid under the law and it was held that it was not. Maclean C.J. in delivering the judgment observed as follows :- "On principle I do not see how he can do so for the question at once arises, what has he to bequeath or alienate under his will. The she-bait is a manager or a quasi trustee for the benefit of the idol. His office enures only for his life, his will only comes into operation on his death. What is there then for him to alienate by his will? Nothing.

No doubt this was a case of a alienation by a will and in this case there is alienation inter vivos but the principle remains the same that the manager or the shebait has not got such a right which he can transfer either inter vivos or by a will.

The case referred to by the learned Subordinate Judge namely K.P.L.S. Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 26 CLJ 153 has no application to the facts of this case. There the question was whether the alienation of a debutter -property which was for the benefit of the idol was or was not legal. The question of alienation of the trusteeship or the shebaitship of the idol was not the subject at issue before their Lordships of the Privy Council. Holding as we do that in the absence of a custom or anything in the deed of endowment to the contrary the office of the shebaitship if transferred by the she-bait for the time being, we are bound to decide the point of law in favour of the appellants. In this case it appears that the question of custom was raised and was found by the trial Court in favour of the plaintiffs. The learned subordinate Judge has come to no conclusion on this point.

We think that this case must go back to the learned lower appellate Court for a finding of fact as to the existence Or otherwise of a custom under which the shebaitship can be transferred. We, therefore, allow the appeal and order that this case be remanded to the lower appellate Court for deciding the question of custom. He will then finally dispose of the case according to law. Costs will abide the result.

Wort, J. - I agree.